GOLDSTONE v BLOOMFIELD TOWNSHIP PUBLIC LIBRARY
Docket No. 130150
Supreme Court of Michigan
Argued April 10, 2007. Decided July 26, 2007.
479 MICH 554
In an opinion by Justice MARKMAN, joined by Chief Justice TAYLOR and Justices CORRIGAN and YOUNG, the Supreme Court held:
- A public library is only available to a person, for purposes of the Michigan Constitution, if he or she has reasonable borrowing privileges. However, not every public library facility in Michigan must be identically available to all residents of the state.
Const 1963, art 8, § 9 does not refer to “each and every” public library or to “individual” public library facilities, but refers only to the legislative obligation to provide for the “establishment and support of public libraries.” It is the public library as an entity or institution that must be made available to all residents, not each individual public library facility. - By enacting numerous laws that encourage local control of public libraries and that establish a system in which communities with public libraries can enter into agreements with communities
without public libraries in order to extend access to such libraries, the Legislature has made public libraries genuinely “available.” - The plaintiff would undo the incentives enacted by the Legislature for the establishment and maintenance of public libraries. He would disincentivize communities from building libraries by making them identically available to persons who had and who had not paid for them; he would disincentivize communities from maintaining libraries by making improvements and new accessions identically available to persons who had and who had not paid for them; he would disincentivize communities without libraries from entering into cooperative agreements with library communities by allowing persons to enter into individual agreements; and he would deprive communities with libraries of the revenues that would be lost as a result of the combination of these disincentives. As a result, over time, the plaintiff would almost certainly produce an environment in which fewer new libraries are constructed, fewer new books are purchased, fewer cooperative agreements are reached, and local support of public libraries declines. Public libraries would become less, not more, available.
- Contrary to the plaintiff‘s argument,
Const 1963, art 8, § 9 does not entitle nonresidents to library privileges that are identical to those of the residents of communities with libraries and at a significantly lower cost than borne by the residents. That is, nonresidents are not entitled to identical library privileges subsidized by the taxpayers of another community.
Affirmed.
Justice CAVANAGH, joined by Justices WEAVER and KELLY, dissenting, agreed with the majority that the understanding most common to the people when
Justice WEAVER, dissenting, fully concurred with Justice CAVANAGH‘s dissent, and wrote separately to state that the majority‘s skewed interpretation of the phrase “available to all residents of the state” unconstitutionally divests the people of Michigan of their constitutionally promised right of full access to libraries and provides another example of the majority‘s misuse of the power of interpretation to create policy and law.
A public library is only available to a person if he or she has reasonable borrowing privileges (
2. CONSTITUTIONAL LAW - PUBLIC LIBRARIES - NONRESIDENT USE.
It is the public library as an entity or institution, not each individual public library facility, that must be made available to all state residents (
Robert E. Toohey for the plaintiff.
Seyburn, Kahn, Ginn, Bess and Serlin, P.C. (by Joel H. Serlin and Barry M. Rosenbaum), for the defendant.
Amici Curiae:
Clark Hill PLC (by Andrew C. Richner, Paul C. Smith, and F. R. Damm), for the Detroit Public Library.
Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, and Thomas F. Schimpf and Matthew H. Rick, Assistant Attorneys General, for the Department of History, Arts and Libraries.
Foster, Swift, Collins & Smith, P.C. (by Stephen O. Schultz and Stephen J. Rhodes), for the Michigan Library Association, the Michigan Townships Association, and the Michigan Municipal League.
MARKMAN, J. We granted leave to appeal to consider whether
I. FACTS AND PROCEDURAL HISTORY
Plaintiff is a resident of the city of Bloomfield Hills. The city does not have its own public library, but from 1964 to November 12, 2003, had entered into a “library service agreement” with defendant Bloomfield Township Public Library that, for a fee, permitted city residents full access to the library and to other area libraries that were also signatories to the agreement. When the agreement expired in 2003, the city of Bloomfield Hills and the township library did not renew it. As a result, city residents, including plaintiff, were allowed by the township only to visit the library and to use its materials on site. They were not allowed to borrow library materials or to fully access online databases and other programs, services, and activities that were regularly available to township residents.
Plaintiff believed that, notwithstanding the lack of a service agreement between the township library and the city, the Michigan Constitution guaranteed availability to him and to all other state residents. Thus, he felt he had the right to full use of the library and its collections, including borrowing privileges. Plaintiff sought a nonresident library card and offered to pay a borrowing fee. Pursuant to its local policies, the township library refused and asserted that the access it allowed was sufficient to meet the requirements of
Plaintiff brought an action seeking a declaratory judgment against the township library, demanding borrowing rights equivalent to those of a township resident on the basis that such rights are assured by
The trial court granted summary disposition to the township library, ruling that, by allowing onsite use, the library satisfied the constitutional requirement that libraries be “available” to state residents. The Court of Appeals affirmed, agreeing that the availability requirement of
II. STANDARD OF REVIEW
This Court reviews de novo a trial court‘s decision granting or denying a motion for summary disposition. City of Taylor v Detroit Edison Co, 475 Mich 109, 115; 715 NW2d 28 (2006). Issues of constitutional construction are questions of law that are also reviewed de novo. Id. When interpreting constitutional provisions, our primary objective “‘is to realize the intent of the people by whom and for whom the constitution was ratified.‘” Studier v Michigan Pub School Employees Retirement Bd, 472 Mich 642, 652; 698 NW2d 350 (2005), quoting Wayne Co v Hathcock, 471 Mich 445, 468; 684 NW2d 765 (2004). That is, we seek the “‘common understanding‘” of the people at the time the constitution was ratified. Studier, supra at 652, quoting 1 Cooley, Con-
III. ANALYSIS
A. CONST 1963, ART 8, § 9
The legislature shall provide by law for the establishment and support of public libraries which shall be available to all residents of the state under regulations adopted by the governing bodies thereof.
Defendant argues that a public library is “available” for purposes of our constitution when it is subject to entry and its resources subject to use on site. We disagree. Instead, we agree with plaintiff that a public library is only “available” when a person enjoys reasonable borrowing privileges. In particular, we agree with plaintiff that, in construing our constitution, “available” must be assessed specifically in conjunction with “public libraries.” Although this may not necessarily be true with regard to research libraries or private libraries, we believe that the “common understanding” is that “public libraries” are only “available” to a person if he has reasonable borrowing privileges.2
However, we disagree with plaintiff‘s premise that
And this is precisely what the Legislature has done. Acting pursuant to its constitutional obligation to “provide by law for the establishment and support of public libraries which shall be available to all residents of the state,” the Legislature has enacted numerous laws.6 The premise of these laws appears to be that the mandate of the constitution can best be achieved by (a) the encouragement of local control of public libraries7 and (b) the establishment of a system in which communities with public libraries can enter into agreements with communities without public libraries in order to extend access to such libraries.8
Justice CAVANAGH acts considerably less wisely in seeking to substitute his own judgment for that of the
Pursuant to
Indeed, it appears from statistics offered by the Michigan Department of History, Arts and Libraries that less than 1/5 of 1 percent of the population of Michigan does not have a public library available either directly through their communities or through a cooperative agreement.10
Plaintiff also argues that the township library‘s policy of not offering nonresident book-borrowing privileges violates his First Amendment “right to receive information” under the United States Constitution13 and his right not to be deprived of “the equal protection of the laws” under the United States and Michigan constitutions.14 We disagree.
Plaintiff cites four cases to support his argument that the township library‘s policy of not offering nonresident book-borrowing privileges violates the First Amendment. The first case—Martin v City of Struthers, 319 US 141; 63 S Ct 862; 87 L Ed 1313 (1943)—held that a municipal ordinance that prohibited people from knocking on doors to distribute leaflets violated the First Amendment. The second case—Griswold v Connecticut, 381 US 479; 85 S Ct 1678; 14 L Ed 2d 510 (1965)—held that a state statute prohibiting the use of contraceptives violated the right of marital privacy. The third case—Kreimer v Morristown Bureau of Police, 958 F2d
The most relevant case cited is Kreimer, supra at 1255, which merely held that the First Amendment protects “the right to some level of access to a public library.” In this case, the township library indisputably allows nonresidents “some level of access to a public library.” Therefore, even under Kreimer—the most relevant and the most favorable case that plaintiff has cited in support of his argument, although we emphasize again not a case that is controlling or that has been adopted in this state—it is clear that a township library‘s policy of not offering nonresident book-borrowing privileges does not violate the First Amendment.
Plaintiff‘s equal protection challenge likewise fails. Plaintiff alleges no discrimination here based on race, national origin, ethnicity, gender, or illegitimacy. Accordingly, this Court applies a “rational basis” analysis.15 See, e.g., Crego v Coleman, 463 Mich 248, 259-260;
IV. CONCLUSION
TAYLOR, C.J., and CORRIGAN and YOUNG, JJ., concurred with MARKMAN, J.
CAVANAGH, J. (dissenting). Imposing a bizarre semantical construct on
To obtain a true understanding of what the constitutional language means and how it must be enforced, one must actually consider the people‘s understanding of what it meant to have our libraries “available,” for it is the people‘s understanding of the amendment at the time they ratified it that governs the analysis. One cannot, as the majority does, ante at 561-566, consider concerns that may have arisen later or that exist today, such as policy issues or hypothetical financial considerations. Nor may we look to other constitutional provisions or later-enacted legislation as clues to the amendment‘s meaning. See ante at 561-562. Rather, the people‘s understanding is properly evaluated in a way we have explained as follows:
In interpreting the constitution, this Court has developed two rules of construction. First, the interpretation given the constitution should be “the sense most obvious to the common understanding“; the one which “reasonable minds, the great mass of people themselves, would give it“. Traverse City School Dist v Attorney General, 384 Mich 390, 405; 185 NW2d 9 (1971); Council No 11, AFSCME v Civil Service Comm, 408 Mich 385, 405; 292 NW2d 442 (1980) (quoting Cooley‘s Const Lim [6th ed], p 81). Secondly, “the circumstances surrounding the adoption of the constitutional provision and the purpose sought to be accomplished may be considered“. Traverse City School Dist, 384 Mich 405. See Kearney v Board of State Auditors,
189 Mich 666, 673; 155 NW 510 (1915). [Soap & Detergent Ass‘n v Natural Resources Comm, 415 Mich 728, 745; 330 NW2d 346 (1982).]
Although the majority acknowledges the existence of this standard, ante at 558-559, and at least purports to apply it to conclude that the people understood libraries to be lending institutions,1 the majority makes no further mention of these principles as it proceeds to decide how the concept of “availability” must be interpreted. Thus, the majority reaches the unexplained (and inexplicable) conclusion that the people intended that libraries would “in general” be available.
The majority‘s core analytical misstep occurs ante at 559-560, where it states,
However, we disagree with plaintiff‘s premise that
Const 1963, art 8, § 9 requires that each individual public library facility in Michigan must be “available” on identical terms to all residents of the state. Rather than addressing the obligations of individual library facilities, this provision is better understood, in our judgment, as assuring the availability of public libraries in general. That is, the Legislature shall make public libraries available, not necessarily each individual library facility.Const 1963, art 8, § 9 does not refer to “each and every” public library or to “individual” public library facilities, but refers only to the legislative obligation to provide for the “establishment and support of public libraries.” By this use of the plural, as well as the use of the broad terms “establishment and support,” we believe that the constitution refers to “public libraries” as an entity, i.e., public libraries as an institution. It is this entity, this institution—the public library—that must be made “available” to all residents, not each individual library facility.
I fail to see the relevance of the other constitutional provisions the majority proffers to support its conclusion. The people‘s intent with respect to
The majority‘s subsequent orations on library funding issues are not only irrelevant to the analysis, but they also demonstrate a critical misunderstanding of the issue at hand. The majority fails to grasp that the interpretation of “available” is not subject to post-
Rather than being charged with determining what it means to have libraries available, the constitutional provision requires the Legislature to enact laws that establish our public libraries and to develop ways in which those libraries can be supported, while the local library boards may promulgate regulations relating to the logistical and administrative tasks intrinsic to running a library, including the process for lending books to nonresidents who are not otherwise covered by a cooperative agreement.
Thus, we must determine what sense of the “availability of libraries” was most obvious to the common understanding of the great mass of the people of this state. Soap & Detergent, supra at 745. Having conducted my own inquiry into the people‘s intent, I agree with the majority that the understanding most common to the people was that libraries were lending institutions. But the analysis cannot end there; rather, we must also examine the “circumstances surrounding the adoption of the constitutional provision and the purpose sought to be accomplished,” Soap & Detergent, supra at 745, quoting Traverse City School Dist v Attorney General, 384 Mich 390, 405; 185 NW2d 9 (1971), to reach an understanding of what it meant to the people to have these lending libraries “available.” Although such an analysis would lead to the conclusion that the people ratified a constitutional provision that would do more than promote some ethereal sense that lending libraries would “in general” be available, whatever that might mean, the majority blatantly ignores the people‘s understanding and in fact, as noted, makes no inquiry into it whatsoever.
In construing the meaning of a constitutional provision with the ultimate goal of discerning the people‘s intent, “the technical rules of statutory construction do not apply.” Traverse City School Dist, supra at 405, citing McCulloch v Maryland, 17 US (4 Wheat) 316, 407; 4 L Ed 579 (1819). Further,
“it is not to be supposed that [the people] have looked for any dark or abstruse meaning in the words employed,
but rather that they have accepted them in the sense most obvious to the common understanding, and ratified the instrument in the belief that that was the sense designed to be conveyed.” [Id., quoting Cooley, Constitutional Limitations, p 81 (emphasis in original).]
The majority‘s theory about “general availability” and plural and singular word forms are hypertechnical conclusions that run roughshod over the principle explained by Justice Cooley. The majority‘s interpretation is both a dark and abstruse meaning that is quite opposite to the sense most obvious to the common understanding. At the time this amendment was ratified, in the face of language that read, “The legislature shall provide by law for the establishment and support of public libraries which shall be available to all residents of the state...,” the people of Michigan certainly did not understand that language to convey an indeterminate promise that libraries would “in general” be available, which, in the majority‘s view, means merely that some library somewhere in the state must lend books. Rather, basic common sense dictates that this wording guaranteed actual availability of libraries to all people in the sense that each library would be available for each citizen‘s use. Indeed, the people ratified a constitutional provision that mandated the availability of lending institutions to “all citizens,” not “some citizens” or just citizens who are under a library service agreement.
The majority‘s declaration that when ratifying the constitutional amendment, the people believed they were ratifying a provision that would replace their indelible right to full library access with an impotent “right” to have the availability of libraries “generally” encouraged, almost hints of a shell game. Moreover, the majority violates a cardinal rule of construction by adding words to the provision. Rather than seek the
I must note the irony of the majority‘s conclusion that the citizens would have understood libraries to be lending institutions, which is clearly a commonsense interpretation, contrasted with its peculiar conclusion that the people would have understood “availability” as a term that did not guarantee availability to each citizen, which is clearly not a commonsense interpretation. The majority swings twice but hits only once.
Having discussed the commonsense meaning behind the provision, which, in my view, is easily detectable, I turn now to the circumstances that existed during the time the constitutional provision was proposed and ratified. The circumstances surrounding the promulgation of
Of paramount concern, as reflected in the transcript of the convention debate, was library funding. Delegates discussed at length the necessity of allowing the Legislature to promulgate regulations that would promote the economic feasibility of reducing the required number of libraries while increasing the number of citizens who may use the libraries. Delegate Alvin M. Bentley, chairman of the committee on education, thoroughly explained that while the time had come to transition from the original constitutional mandate, the new constitutional mandate would not only preserve, but increase library availability:
This section continues the fine Michigan tradition of encouragement and support of public libraries throughout the state, but it does attempt to eliminate some of the confusing elements of the present article XI of section 14. The 1908 constitution states: “The legislature shall provide by law for the establishment of at least 1 library in each township and city;...” This has never been adhered to as a matter of practice. Today, only 1 out of 15 townships has a library.
The present language emphasizes that “public” libraries will be “available” to residents without fixing how or where the libraries themselves shall be organized. The committee presumes that legislation may be written so that each library may make reasonable rules for the use and control of its books.
Under this proposal present libraries will be retained. But to make libraries more available to the people their services may be expanded through cooperation, consolidation, branches and bookmobiles. [1 Official Record, Constitutional Convention 1961, p 822 (emphasis added).]
With financial concerns at the forefront, the scope of privileges that would be afforded to nonresidents using another municipality‘s library was thoroughly explored
But not all delegates were convinced that the question of cost-based library use was open on the face of the amendment‘s language. Delegate Milton E. Higgs, for example, questioned whether the constitutional language meant not only that making libraries available to all citizens meant that all citizens could borrow books, but that no charge could be assessed for the privilege:
I would say that when you say “which shall be available to all residents of the state” in the constitution, that you could not limit or qualify that in any way by the requirement of a deposit for the use of the book to guarantee its return or anything else. You say “It shall be available to all residents of the state.” This is like saying in a criminal case, “You‘ve got a right of appeal.” When you say, “You‘ve got a right of appeal,” you‘ve got that right whether you‘ve got the money to pay for it or not. In fact, if you don‘t have the money to pay for it, the county has to provide it in that case, and I say in this case the same thing would apply. [1 Official Record, Constitutional Convention 1961, p 836.]
Indeed, the debate centered primarily on how libraries would be funded under the new language and whether nonresidents would or could be made to pay for using the services, including book lending, of libraries in other municipalities, not on whether nonresidents could borrow books at all. In fact, when the topic of book borrowing was broached, delegate Karl K. Leibrand expressed concern that providing a free “full time library service [to nonresidents], with the circulation of books, [would be] an undue burden.” 1 Official Record, Constitutional Convention 1961, p 834. In response, the chairperson of the subcommittee on libraries of the committee on education, delegate Vera Andrus, explained that contracts between municipalities were one solution to that concern and that the language of the proposed amendment “doesn‘t say free.” Id. at 835. Elsewhere in the dialogue, delegate Bentley asked, “[A]s long as a person from any part of the state can come up to your library and conform with your local regulations and rules, he can have that library and its services and its books made available to him. Would you say that that was covered?” Id. at 836. Delegate Higgs responded, “I would say that would be covered.” Id.
These passages and the balance of the debate on the proposal quite clearly evidence that the key concern was, given that library services must be made available to all citizens, how the libraries would pay for the increase in use. As is also clear, the unanimous resolution of that question was to engraft onto the constitutional amendment a grant of authority for the Legislature to promulgate laws that would provide for this support. But the assumption was that library services, free or not free, would be fully available to all citizens.4 Glaringly absent from the debate is any proffering of the idea that Michigan residents would be unilaterally deprived of the right to borrow books if they live in a community without a library.
In fact, two delegates who were present during and participated in the constitutional convention debates have appeared before this Court as amici curiae to share their recollections of how the proposed constitutional amendment was commonly understood at that time. And in our quest to ascertain the meaning behind the constitutional provision, their thoughts are enlightening and beneficial.5 Former delegates Tom Downs and Milton Higgs have averred to this Court that the constitutional provision was intended, and was commonly understood, to mean that “the words, ‘available to ALL RESIDENTS OF THE STATE,’ included borrowing books during days and hours the library would
were added to committee proposal 31 during the floor debate to allow some flexibility to the word “available” understanding that such regulations be reasonable and that county law libraries although available to the public would be free to continue the practice of limiting circulation of its books so that they would be immediately available for the judge, the lawyers, and the litigants having business with the court when needed. [Id.]
Downs has the same recollections from his participation in the constitutional convention. He recalls “[t]hat the common understanding expressed by the delegates was that the purpose of Article VIII was to insure ready access to the means of education by all citizens of Michigan regardless of area of residency” and that the provision “required public libraries to permit all state residents to borrow books regardless of area of residency.” Affidavit of Tom Downs, May 5, 2006. Forty-five years later, both gentlemen agree with what seems clear from the transcript of the constitutional convention debates: the intent behind the constitutional provision was to enlarge citizens’ access to libraries by allowing citizens to use any library in the state and to obligate the Legislature to provide funding for this system.
And the Legislature promptly did address funding matters by enacting a series of regulations that established mechanisms through which adequate funding could be achieved. Probably the most significant of the
Amended several times since, the SAPLA is now codified at
Not every city and township without its own library, however, would establish a cooperative agreement with another town. So the parameters of a person‘s ability to use another town‘s library when residing in a town with neither a library nor a cooperative agreement also had to be addressed. When the question regarding the right of a library to refuse service to a nonresident first arose, Attorney General Frank Kelley was asked whether
all public libraries and their facilities shall be available for use by all state residents, subject to reasonable rules governing the use and control of the library facilities. Clearly, under the constitutional mandate, and the Convention debates, supra, the right of state residents to use the facilities of any public library includes not only the right to enter a public library and read books there, but the same right to borrow books that is offered to residents of the community in which the library is established subject to reasonable regulations....
The framers of Const 1963, art 8, § 9, supra, did not intend to create, or perpetuate, a library system where library privileges are not provided to state residents on an equal basis. [OAG, 1979-1980, No 5,739, p 874 (July 15, 1980) (emphasis added).]
Subsequently, after another lengthy analysis of the plain language of the constitutional amendment and the purposes surrounding the amendment as reflected in the convention debates, the Attorney General explained that the fees to borrow books that are charged to a nonresident who is not covered under a cooperative agreement must reasonably reflect the costs incurred by the library in making those privileges available and that the costs must be proportionate “to the cost, direct
A library may charge nonresident borrowing fees to a person residing outside of the library‘s service area, including a person residing within the cooperative library‘s service area to which that library is assigned, if the fee does not exceed the costs incurred by the library in making borrowing privileges available to nonresidents including, but not limited to, the costs, direct and indirect, of issuing a library card, facilitating the return of loaned materials, and the attendant cost of administration. [
MCL 397.561a .]
The Attorney General‘s conclusions about the focus of the constitutional convention debates match my own. And the series of events that occurred after
But despite the categorical evidence that the intent behind the provision was to continue to make libraries fully available to all while removing the burdensome requirement that every township and city maintain a public library, and the striking absence of any evidence to the contrary, the majority decides with the flick of a pen that a citizen without a public library in his town is at the mercy of each individual library across the state with respect to whether he can check out a book. Under the majority‘s “rationale,” as long as some library somewhere in the state allows book lending, that is close enough.7
And the majority‘s philippic response to this dissent entirely ignores that the Legislature has given libraries the authority to assess fees for nonresident book borrowing that reflect the direct and indirect costs of that practice.
The majority seems to be suggesting that nonresident book borrowing would bankrupt the entire library system and compel all public libraries into a downward spiral of decrepitness and decay that will culminate in crumbling buildings and dusty old dog-eared collections that nobody wants to read. See ante at 563-565. I refuse to credit such thespian antics. The Legislature has an obligation to ensure that the libraries the public has a right to have available are adequately supported. If financial struggles ensue, the Legislature is more than equipped to deal with them, and the people of this state are more than equipped to handle their concerns through the democratic process. Similarly, if the people‘s choice to require the full availability of libraries was fiscally unwise, its correction “is not a judicial function, but rather ‘must be left to the people and the tools of democracy: the “ballot box, initiative, referendum, or constitutional amendment.“‘” People v Maffett, 464 Mich 878, 895; 633 NW2d 339 (2001) (CORRIGAN, J., dissenting), quoting People v McIntire, 461 Mich 147, 159; 599 NW2d 102 (1999), citing Dedes v Asch, 446 Mich 99, 123-124; 521 NW2d 488 (1994) (RILEY, J., dissenting). See also Michigan United Conservation Clubs v Secretary of State, 464 Mich 359, 389; 630 NW2d 297 (2001) (CORRIGAN, J., concurring); Robinson v Detroit, 462 Mich 439, 474; 613 NW2d 307 (2000) (CORRIGAN, J., concurring). This Court has no place “incentivizing,” “disincentivizing,” or otherwise engaging in any policy decisions with respect to financing. See ante at 563-564 and n 9. In fact, “ignor[ing] the
Moreover, it is the majority who now gives the green “incentivization” light for library boards to politicize their accessibility by creating regulations that reach far further than merely preventing nonresident book borrowing onsite. For example, when Bloomfield Township and the city of Bloomfield Hills could not agree on a price for the renewal of their library service agreement,8 which failure resulted in city of Bloomfield Hills residents’ loss of borrowing and other privileges at defendant library, defendant commanded a “reciprocal agreement” with 90 other libraries in which those libraries agreed not to lend books to any city of Bloomfield Hills resident. Thus, despite that plaintiff was issued a MichiCard9 from the Pontiac Public Library, he was refused book borrowing privileges at the Baldwin Public Library and the West Bloomfield Public Library, even though both libraries belong to the network of libraries accepting the MichiCard. Those libraries informed plaintiff that under their agreement with defendant, they “cannot furnish borrowing services to Bloomfield Hills city residents unless they have a valid card from
It should be borne in mind that the proposed constitutional amendment did not represent a marked change in existing practices. Before the ratification of
Michigan differs from most states in that libraries have been mentioned in our constitutions from the first in 1835 through the 1850 document down to the present one of 1908.11
The proposed new constitution of 1963 continues and strengthens this tradition. The new wording accomplishes several things:
The addition of the word “support” “acknowledges the growing need for statewide support for public libraries“.... While this need has been recognized by the legislature, the new wording gives it increased emphasis.
The new language recognizes the need for libraries available to all residents of Michigan, whereas now over a million have no access to public libraries.12
*
*
*
In brief, the new constitution continues the present systems of organization and financing, while placing increased emphasis on state support of libraries and on the need for statewide library services.
Thus, instead of guaranteeing that the library a person could access would be in that person‘s town, the constitutional amendment guaranteed that all libraries would be available to all people. The notion of “availability“—and the attendant rights—remained constant. There is simply no basis on which to conclude, and the majority provides none, that the people of this state understood or agreed that the constitutional amendment meant that libraries would be “generally” available, or that as long as some libraries are fully available to some people, the constitutional mandate is fulfilled.
As defendant itself recognizes, “Clearly, as was set forth in the Address [to the People], the delegates intended for existing libraries to fill the void in service created by the failure of so many local communities to build their own libraries.” (Emphasis added.) In lieu of requiring all townships and cities to provide a library to their residents, the revision would “fill the void” by
The majority trivializes the importance of the constitutional convention debate and incorrectly characterizes its content. Ante at 560-561 n 4. The majority states that it prefers to look to the “actual language” of the constitution rather than at how the delegates were discussing and describing its meaning. Ante at 560 n 4. But what the delegates understood the proposed constitution to mean has critical importance because it was their understanding that was then conveyed to the people in an effort to educate the people about the proposed amendments before the people voted on it in April 1963. In other words, the people derived their understanding of the constitutional language from what was written by those participating in the constitutional convention. So the explanation provided to the people was premised on the delegates’ understanding after having participated in the framing of the new text. It should come as no surprise, then, that the publication What the Proposed New State Constitution Means to You, written by the delegates and circulated to Michigan citizens, explained that “[t]he proposed new language emphasizes that ‘public’ libraries will be ‘available’ to residents without fixing how or where libraries shall be organized.” Id. at 81. The publication states
The majority‘s “generally available” theory has no basis in fact or logic and requires the belief that the citizens of Michigan willingly gave up the guarantee of a free, community-based, fully accessible library for the unknown of a possibly cost-based, possibly distant library that would have the authority to severely restrict usability. It requires one to accept that the people gave up not only their right to have a free library in their town, but also the right to borrow books from any library. This conclusion is incredible both as a basic premise and when viewed in the historical context of the constitutional amendment.
In 1963, when asked to ratify a constitutional amendment that would relieve communities of the burden of maintaining a library in exchange for ensuring that all libraries would be “available” to all people, the people of Michigan spoke. Pointlessly, the majority‘s refusal to engage in a comprehensive attempt to understand that voice divests the citizenry of a right it gained through reasoned compromise. What was a practical and calculated exchange of rights at the time is lost today through imposing on clear language an amorphous postulation that is unsupported by both common sense and history.
Now, to me, I cannot disassociate the means of education from libraries....
We must move forward and build libraries, big libraries, big schools, better schools, better libraries if we are to move forward and remove our nation from the position of a second class power in the field of science.... [1 Official Record, Constitutional Convention 1961, pp 830-831.]
Delegate Bledsoe, and countless others who share his views about the critical role education should be given in our society, would undoubtedly be saddened by today‘s decision and by the story plaintiff tells of a young boy who, according to plaintiff, lives in a city that has no public library. Some students in the child‘s class live in the township in which defendant is located and, thus, can borrow books from defendant and complete research and homework assignments with those resources. The young boy cannot. Consequently, defendant‘s refusal to allow nonresidents to borrow books is disadvantaging this child academically.
The majority‘s decision will permit this story to be repeated endlessly across the state. For example, in rural areas that cannot afford to maintain their own libraries, there may not be a library for miles and miles around. If the residents of such an area can manage to reach a library, they must now be prepared to conduct their reading and research endeavors onsite. This is not what our citizens bargained for, and it is precisely the opposite of what the then-Michigan Governor extolled in 1962. Speaking to the Michigan Library Association, the Governor encapsulated the challenge facing Michigan to strengthen and expand Michigan libraries so that every person would have full access to this great resource. Governor Swainson stated:
Every resident of Michigan is entitled to good library service. It is imperative, therefore, that we continue our strides toward that goal. Access for everyone to the great funds of knowledge and information found in our libraries is essential. I cannot overstress the need for it. Our total library resources must be within the reach of everyone. Information and the means to obtain it are vital to our progress if we are to cope with the problems and complexities of today‘s changing world. An enlightened public is indispensable to the preservation and progress of our democratic society. [Governor John B. Swainson, Library Service to the People of Michigan: Goals, Status, Progress, Michigan Library Association District Meetings 1962.]
On May 1, 1963, shortly before our 1963 Constitution was ratified, United States Supreme Court Justice William J. Brennan, Jr., honored Law Day at the 75th anniversary of the Newark (New Jersey) Public Library. Justice Brennan explained that it was “most appropriate, and a most happy coincidence for [him], that the Library — so much an institution which has long been a staunch pillar of freedom, should celebrate its birthday on the very day which the Nation sets aside for recognition of the Rule of
While the doors of Michigan libraries remain physically open, the majority tramples the intent of our people by misinterpreting the law to the severe disadvantage of those who wish to educate themselves. As plaintiff queried, “Given the universal understanding that our libraries and their books exist to help us become better educated and more successful and informed citizens, one wonders why defendant seeks to make the books of our public libraries less available to the people, not more.” One wonders this same thing about the majority.
Milton E. Higgs, one of 144 candidates elected to serve as a delegate to the Michigan constitutional convention, is no less emphatic today than he was 45 years ago that the purpose of the constitutional amendment was to fully open public libraries to the citizens regardless of residency, and that this included the right to borrow books. Mr. Higgs states:
[T]he delegates considered and understood the impact of clear and unambiguous words being imbedded in the Constitution which would, as a matter of law, be binding on the Legislature and the Courts prohibiting abrogation of the right of all residents of this State pursuant to reasonable regulations to have access and borrow books from any “public” library in the spirit of ANDREW CARNEGIE who said, “THERE IS NOT SUCH A CRADLE OF DEMOCRACY UPON THE EARTH AS THE FREE PUBLIC LIBRARY, THIS REPUBLIC OF LETTERS, WHERE NEITHER RANK, OFFICE, NOR WEALTH RECEIVES THE SLIGHTEST CONSIDERATION.” [Affidavit of Milton E. Higgs, May 25, 2006.]
WEAVER and KELLY, JJ., concurred with CAVANAGH, J.
WEAVER, J. (dissenting). I concur fully with Justice CAVANAGH‘s dissent, which thoroughly exposes the perversely unrestrained misinterpretation of the phrase “available to all residents of the state” within
Libraries are vitally important institutions in a democracy. The people of Michigan adopted a constitutional provision that expressly guarantees that all residents of Michigan have access to libraries.
The legislature shall provide by law for the establishment and support of public libraries which shall be available to all residents of the state under regulations adopted by the governing bodies thereof. All fines assessed and collected in the several counties, townships and cities for any breach of the penal laws shall be exclusively applied to the support of such public libraries, and county law libraries as provided by law. [Emphasis added.]
Thomas Jefferson stated, in notably similar language to
I have often thought that nothing would do more extensive good at small expense than the establishment of a small
circulating library in every county, to consist of a few well chosen books, to be lent to the people of the country under such regulations as would secure their safe return in due time. [Letter from Thomas Jefferson to John Wyche, May 19, 1809.]
A learned public is essential to a democracy. In explaining the importance of the availability of books, Thomas Jefferson further stated:
Books constitute capital. A library book lasts as long as a house, for hundreds of years. It is not then an article of mere consumption but fairly of capital, and often in the case of professional men, setting out in life, it is their only capital. [Letter from Thomas Jefferson to former President James Madison, Sept. 16, 1821.]
Libraries ensure that information is available to all people, not only to the privileged. An essential function of a library is to provide the public with equitable access to information. The people of Michigan, through the Michigan Constitution, have declared that equitable access to libraries is something that they desire as a society to promote a democratic government in Michigan. The Michigan Constitution of 1908 stated that a library should be established in every township in Michigan.
The key to the proper and restrained interpretation of “available to all residents of the state” by this Court is to determine what the ratifiers of the constitution, the people, believed “shall be available to all residents of the state” meant when they agreed to give up their
The majority of four‘s unrestrained and mistaken decision directly contradicts the intent of the ratifiers of
The decision today is another example of the majority of four‘s misuse of the power of interpretation to create policy and law, taking away the rights of the people of Michigan and denying them justice in this Supreme Court. It is yet another example of judicial activism by the majority of four. See also Herald Co v Eastern Michigan Univ Bd of Regents, 475 Mich 463; 719 NW2d 19 (2006) (eroding rights under the Michigan Freedom of Information Act); Kreiner v Fischer, 471 Mich 109; 683 NW2d 611 (2004) (reducing no-fault insurance rights); Maldonado v Ford Motor Co, 476 Mich 372; 719 NW2d 809 (2006) (preventing trial by jury); Gilbert v DaimlerChrysler Corp, 470 Mich 749; 685 NW2d 391 (2004) (overturning accountability for sexual harassment in the workplace); and Michigan Citizens for Water Conservation v Nestlé Waters North America Inc, 479 Mich 280; 737 NW2d 447 (2007) (reducing the rights of every citizen to protect the environment by suit under the
Notes
The majority admits that all the residents of the city of Bloomfield Hills will be left without library access, and further admits that there may be similarly situated residents across the state who will also be divested of their library access. Inexplicably, the majority brushes off the impact on these residents and cavalierly continues to proclaim that the majority opinion upholds the constitutional mandate to ensure that libraries “shall be available to all residents of the state.”Indeed, it appears from statistics offered by the Michigan Department of History, Arts, and Libraries that less than 1/5 of 1 percent of the population of Michigan does not have a public library available either directly through their communities or through a cooperative agreement.10
We agree with Justice CAVANAGH that it is not for the Legislature to ultimately determine the meaning of “available” under
Justice CAVANAGH simply makes no sense on the issue of fees. At one point, he states, “I offer no opinion regarding whether . . . fees are The MichiCard is a statewide library card that allows holders of the card to use the services, including book borrowing, of any participating library in the state. Participating libraries are reimbursed by the state for postage costs incidental to shipping books to patrons, as well as the replacement costs of items that are not returned.
Perhaps more than anything, it is this hard fact—the relatively modest success of the predecessor provision in ensuring public library access to the people of Michigan—that explains the majority‘s and Justice CAVANAGH‘s different understandings of the significance of the “circumstances” surrounding the ratification of
Justice CAVANAGH approvingly cites the amici curiae briefs and the affidavits of two former constitutional convention delegates. However, just as this Court is not bound by what individual members of the Legislature subsequently state was the specific intent behind a particular statute, Bd of Ed of Presque Isle Twp School Dist No 8 v Presque Isle Co Bd of Ed, 364 Mich 605, 611-612; 111 NW2d 853 (1961), we are not bound by what two of 144 convention delegates state 45 years after the fact was the specific intent behind a particular constitutional provision. Indeed, this stricture is even more true with respect to a constitutional provision than a statute because it is not the intent of the delegates that is controlling, but the intent of the ratifiers—“we the people.”